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A07689 Summary:

SPONSORRosenthal L
COSPNSRD'Urso, Thiele, Sepulveda, Skoufis, Cusick, Joyner, Gottfried, McDonald, Cook, Lavine, Simon, Taylor, Seawright, Pellegrino, Ortiz, Arroyo, Barron, Englebright
Add 32.06, Ment Hyg L
Prohibits certain practices concerning or consideration for referrals by providers of substance use disorder services.
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A07689 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
SPONSOR: Rosenthal L
  TITLE OF BILL: An act to amend the mental hygiene law, in relation to prohibited practices by providers of substance use disorder services   PURPOSE OR GENERAL IDEA OF BILL: This bill would prohibit the practice of substance use disorder patient brokering in New York.   SUMMARY OF PROVISIONS: Section 1 would create a new Mental Hygiene L. § 32.06 to prohibit any individual, addiction professional, credentialed professional, health care provider, health care facility or substance abuse program from giving or receiving a commission, bonus, rebate, or kickback, directly or indirectly, to induce the referral of a potential service recipient in connection with the performance of substance abuse services. This section establishes any violation of this section will constitute a misdemeanor. Sections 2 would make this bill effective immediately.   JUSTIFICATION: The heroin and opioid epidemic has devastated families across New York State. Overdose deaths from heroin, fentanyl, car-fentanyl, and other synthetic iterations have skyrocketed and families are desperate to get care for their loved ones. However, there has also been a corresponding rise in individuals who aggressively pursue people in need of substance use disorder treatment services and, for a sometimes extravagant fee, promise admission to treatment programs. For individuals engaging in this predatory behavior, the most desirable patients are those with robust insurance coverage, and out of network benefit packages. Patient brokers refer these clients to programs offering the highest rate of "return" to the patient broker, with little or no regard for the patient's specific needs. This predatory practice should be prohibited because it capitalizes on, and exploits, families' fears while putting patients at risk of inappro- priate treatment. This bill would make it a crime to offer to or accept any kickback from an individual or entity that provides substance abuse services in exchange for patient referral and admission.   PRIOR LEGISLATIVE HISTORY: This is a new bill.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.   EFFECTIVE DATE: The bill would take effect 60 days after it shall become law.
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A07689 Text:

                STATE OF NEW YORK
                               2017-2018 Regular Sessions
                   IN ASSEMBLY
                                       May 9, 2017
        Introduced  by M. of A. L. ROSENTHAL, D'URSO, THIELE, SKOUFIS, CUSICK --
          read once and referred to the Committee on Alcoholism and  Drug  Abuse
          --  reported  and referred to the Committee on Codes -- recommitted to
          the Committee on Codes in accordance with Assembly Rule 3, sec.  2  --
          committee  discharged,  bill amended, ordered reprinted as amended and
          recommitted to said committee
        AN ACT to amend the mental hygiene law, in relation to prohibited  prac-
          tices by providers of substance use disorder services
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. The mental hygiene law is amended by adding a  new  section
     2  32.06 to read as follows:
     3  § 32.06 Prohibited  practices  by  providers  of  substance use disorder
     4            services.
     5    1. For purposes of this section, unless the context  clearly  requires
     6  otherwise,  "provider"  shall mean any person, firm, partnership, group,
     7  practice association, fiduciary, employer, representative thereof or any
     8  other entity who is providing or purporting  to  provide  substance  use
     9  disorder  services. Provided, however, that "provider" shall not include
    10  a person receiving substance use disorder services from the provider.
    11    2. No provider shall intentionally solicit, receive, accept  or  agree
    12  to  receive or accept any payment, benefit or other consideration in any
    13  form to the extent such payment, benefit or other consideration is given
    14  for the referral of a person as a potential patient  for  substance  use
    15  disorder services.
    16    3. No provider providing or purporting to provide substance use disor-
    17  der  services pursuant to this chapter, shall intentionally make, offer,
    18  give, or agree to make, offer, or give any  payment,  benefit  or  other
    19  consideration  in  any form to the extent such payment, benefit or other
    20  consideration is given for the referral  of  a  person  as  a  potential
    21  patient for substance use disorder services.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
        A                                                          LBD10119-04-8

        A. 7689--A                          2
     1    4. This section shall not apply to any:
     2    (a)  lawful  payments  by  a health maintenance organization or health
     3  insurer, operating in accordance with article thirty-two or  forty-three
     4  of  the  insurance law or article forty-four of the public health law on
     5  behalf of their enrollees for such substance use  disorder  services  or
     6  other benefits required to be provided;
     7    (b) lawful payments to or by a provider to a health maintenance organ-
     8  ization  or  health insurer operating in accordance with article thirty-
     9  two or forty-three of the insurance law or  article  forty-four  of  the
    10  public  health  law,  as  payment for services provided, a refund for an
    11  overpayment, a participating provider fee, or any similar remuneration;
    12    (c) provider for an activity that, at the time of such activity, would
    13  have been lawful as specifically exempt, or  otherwise  not  prohibited,
    14  under  any  federal statute or regulations, including but not limited to
    15  42 U.S.C. § 1320a-7b (b) or the regulations promulgated  thereunder,  if
    16  conducted  by a person, firm, partnership, group, practice, association,
    17  fiduciary, employer representative thereof or any other entity providing
    18  substance use disorder services;
    19    (d) any employee or representative of a  provider  who  is  conducting
    20  marketing  activities,  where  the employee or representative identifies
    21  the provider represented or for whom or which the employee or  represen-
    22  tative  works, identifies that the employee or representative is a mark-
    23  eter and not a clinician or other individual who can provide diagnostic,
    24  counseling or assessment services, and  such  marketing  activities  are
    25  limited  to  educating  the  potential patient about the program with no
    26  effort to steer or lead the potential  patient  to  select  or  consider
    27  selection of the substance use disorder services provider represented or
    28  for whom or which the employee or representative works; or
    29    (e) commissions, fees or other remuneration lawfully paid to insurance
    30  agents as provided under the insurance law.
    31    5.  Any provider who intentionally violates the provisions of subdivi-
    32  sion two or three of this section shall be guilty of  a  misdemeanor  as
    33  defined in the penal law.
    34    6.  If  the commissioner has reason to believe a provider has violated
    35  subdivision two or three of this section, the commissioner  may  proceed
    36  to  investigate  and institute enforcement actions, as may be authorized
    37  pursuant to the applicable provisions of this article.
    38    7. The provisions of this section are in addition to any other  civil,
    39  administrative  or  criminal enforcement actions provided by law. Penal-
    40  ties authorized under this section  may  be  imposed  against  corporate
    41  providers and individual providers.
    42    8. The commissioner shall adopt and may amend rules and regulations to
    43  effectuate the provisions of this section.
    44    §  2.  This  act  shall take effect on the sixtieth day after it shall
    45  have become a law.
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